Mickelson's Podcast : To Retain or Not To Retain ...answering the judges.

Daily Musings of Jan Mickelson

The Cedar Rapids Gazette published this think piece by the three ousted Iowa Supreme Court Justices. Listeners asked me to evaluate their collective opinion on the retention of Judge Wiggins. So I will...line by line. The bold fonts are direct quotes from the Gazette or Varnum.

"Justices’ decision based on rule of law" By Marsha Ternus, Michael Streit and David Baker

Nope, their decision explicitly rejected the rule of law. They made themselves the representatives of new societal norms, while rejecting the time honored legal and social norms which previously defined marriage. They said so.

"As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Oliver Wendell Holmes, Justice, Supreme Judicial Court of Massachusetts, The Path of the Law, address dedicating new hall at Boston University School of Law (January 8, 1897), in 10 Harv. L. Rev. 457, 469 (1897).

In quoting Holmes in this fashion they, like most gay rights activists, blast the past along with the wisdom of centuries implying that limiting the institution of marriage to people of opposite genders is "revolting" to enlightened contemporary thought, and is guided only by "blind imitation of the past". Justice Holmes was an atheist-Darwinist. He rejected both tradition and natural law, along with the founding assumptions of the Constitution's framers who in our "national creed" asserted that our rights are God-given and the duty of government to "secure" them.

"Truth", Holmes once said, "is the majority vote of that nation that could lick all others." He declared that "when it comes to the development of a corpus juris (body of law) the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way."

Holmes, "I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or grain of sand." Varnum embodies the Holmes worldview to perfection.

Iowa justices are required to take an oath to uphold the Constitution of the state of Iowa. Yet, once again, a justice of the Iowa Supreme Court is being targeted for doing just that.

Nope. He is being targeted because like yourselves you misapplied the law and legislated from the bench. How? By explicitly rejecting the traditional definitions of marriage along with the assumptions behind the qualifications for the institution itself.

America’s system of justice is based on the rule of law, a process of governing by laws that are applied fairly and uniformly to all people. The rule of law protects the civil, political, economic and social rights of all citizens — not just the rights of the most vocal, the most popular, or the most powerful. Applying the rule of law is the duty of the courts.

Yes it is. This is begging the question. It assumes that same gender attraction constitutes a "status", equivalent to other "groups" or protected classes such as race, gender, or religion. In short it accepts and equates a status, which DOMA (Defense of Marriage Act) and the majority of Iowans reject. Upon those false assumptions, the faulty Varnum opinion was built.

Our Founding Fathers considered judicial independence an indispensable part of the rule of law. “Judicial independence” means a judiciary that is committed to the rule of law, independent of — free of — outside influence, whether that influence is from a political party or politician, a private interest or popular opinion.

Alexander Hamilton stated in the Federalist Papers that “[t]he complete independence of the courts of justice [was] essential.” He recognized it was the duty of courts “to declare all acts contrary to the manifest tenor of the Constitution void.” “Without this,” he said, “all the reservations of particular rights or privileges would amount to nothing.”

The Iowa Constitution expressly adopted this view: “This constitution shall be the supreme law of the land,” and “any law inconsistent therewith, shall be void.”

Constitutional provisions are given meaning when the courts resolve disputes between citizens and their government, including claims by citizens that the government has violated their constitutional rights. Regardless of whether a particular result will be popular, courts must protect the supremacy of the constitution by declaring an unconstitutional statute void. That is what the Iowa Constitution requires and that is what justices promise to do in their oath of office.

As a former middle and high school teacher I recognize "filler" when I see it. Nobody is arguing the contrary. The court IS independent, but from what? History, precedent, tradition, common sense? "Independent", like "love", "hate" ," tolerance" are meaningless without modifiers. The gratuitous civics lesson aside, the court was simply wrong when it said, "The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch."

Neither the Supreme Court of the United States nor the Iowa Supreme Court were ever contemplated to be "equal" to the other branches of government. Both the US Congress and and the Iowa legislature can limit the appellate jurisdiction of the courts whenever they wish. Both constitutions say so explicitly. More than that, Congress has the power to either create or eliminate whole levels of courts whenever or for whatever they wish. Our founders found the whole subject of "judicial supremacy" to be a non-Constitutional conceit. None thought the courts were co-equal. Jefferson called the judiciary "the weakest branch". They were right.

In Varnum v. Brien, a group of Iowans claimed a provision of Iowa’s marriage statute was inconsistent with the Iowa Constitution. Iowa’s marriage statute states: “Marriage is a civil contract,” but “[o]nly a marriage between a male and a female is valid.” Relying on this provision, the Polk County recorder refused to issue marriage licenses to six same-sex couples. They sued the recorder, claiming this statutory prohibition violated the equality clause in the Iowa Constitution, which states: “[T]he general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

Harvard trained Professor Herb Titus observed in his analysis of Varnum, "The Iowa Constitution doesn't have an equal protection clause. It has an privileges and immunities clause...a much older common law provision." It has been attached to this decision as if it were indeed equivalent to the due process clause of the 14th Amendment. And even if it were an equal protection clause, it wouldn't make the argument since it is assumes the equality of unequal things. This is another example of "begging the question", assuming what they were trying to prove. Comparing sex between married people to the same gender behavior of people who want be identified as "gay" is simply absurd. Two people of the same gender don't have sex. They can't have sex. That's basic biology. Plus, to create a "class" based upon the inclinations to pretend, is not only a logical error, but is fundamentally "unjust". That the court went along with the gay agenda, using their logic, their equivocation, their jargon, and their conclusions, confirms that this was an activist court, legislating from the bench.

More than 200 benefits and privileges are given to married couples under Iowa law. The court considered the constitutionality of the Legislature’s restriction of these benefits and privileges to a limited class of citizens, using the same analysis the court had applied in many prior cases. The court unanimously concluded in 2009 that the statutory restriction violated the Iowa Constitution’s equality clause. Because the Iowa Constitution expressly states that any law inconsistent with the constitution is void, i.e., not valid or legally binding, the Supreme Court declared the offending statute unenforceable and required the recorder to issue the licenses.

Exactly. This is what is is all about. These are the legal, financial and social aspirations of sexual identity politics being advanced by a court which should have upheld Iowa law instead of substituting its political judgment for that of the majority will as expressed by DOMA. Again, this is begging the question by assuming minority status for a behavior-based identity politics movement.

It is important to understand what the court decided. The law at issue in the Varnum case governed a civil contract, not the religious institution of marriage. The court pointed this out, stating that “religious doctrine and views contrary to this [holding] are unaffected,” and “[a] religious denomination can still define marriage as a union between a man and a woman.”

Total malarkey. This both creates a false dichotomy, then removes it. Cheeky. "Marriage" doesn't have, nor does it require a modifier. It is the oldest and first human institution. It does now and forever has meant "two becoming one"; and that commitment has been acknowledged by both civil and ecclesiastical jurisdictions. That acknowledgement has always been for the legal benefit of the partners and children based upon the transcendent nature of that covenant. That definition can't "evolve" into something else. It can only be destroyed by people who are "revolted" by "blind imitation of the past". (BTW two people of the same gender can't "become one" no matter how hard they try.)

The justices did not decide the Varnum case as politicians, turning to public opinion polls and party platforms for direction.

Although the Democrat Party platform calls exactly for what they did, the justices acting out their personal worldviews from the bench didn't require commitment to either party or polls. They were simply acting out their pre-existing worldview commitments.

Nor did the justices decide the case as theologians, looking to the Bible for guidance.

Of course not, that would be "revolting".

As noted in our decision, justices are civil judges who are not permitted to resolve religious debates or base rulings on religious doctrines. Our decision was based on the rule of law, nothing more and nothing less.

Wonderfully circular reasoning. They quoted a non-existent equal protection clause to equate unequal things. By rejecting the transcendent source of law they are oath bound to honor, they undermine everyone's rights.

The Iowa Supreme Court took away no one’s liberties or freedoms when it held the statute unconstitutional. To the contrary, the rights of same-sex couples to the benefits that flow from the civil contract of marriage were upheld.

They most certainly did. They took away from the people of Iowa the right to define basic institutions by the institution most representative of the people. In ordering DOMA to be struck from Iowa law, they legislated from the bench; and in ordering the "remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage" they intruded upon the executive branch's turf, as it artificially bifurcated "civil" v."religious" marriage.

The views of individuals and religious institutions were unaffected by this decision and their religious freedom to define the religious institution of marriage as only between one man and one woman was expressly preserved.

Their pocket books are not "unaffected" as the economic benefits of marriage will be extended to relationships previously not eligible for them. In a country already broke, this makes our welfare safety net even more unsustainable.

Nor did the court exceed its proper role by declaring the law void and unenforceable, as that is what the constitution requires.

There is no constitutional basis to declare same gendered, self-selected identity movements equal to real marriage. Again, this is begging the question and equating unequal things. Activism.

In the end, the question facing Iowans is simple: Do residents want judges who issue rulings based upon public opinion polls, campaign contributions and political intimidation, or judges who issue impartial rulings based upon the rule of law?

False choice. Rulings should be based upon definitions which are time honored. If those definitions are going to re-negotiated, then the branch most suited for that is the representative branch which is subject to the will of the majority, exactly where the Iowa Constitution places it, "...all political power is inherent in the people". If rights "previously unimagined" are going to be "imagined", then by what right does the court's imagination usurp everyone else's ?

The Varnum case was correctly decided under the rule of law and provides no basis for a “no” vote in the retention election. Justice David Wiggins is an intelligent, hardworking and fair jurist and deserves to be retained on the Iowa Supreme Court.

The Varnum opinion set aside rule of law, substituting the ruminations of judges who were "revolted" by adherence to centuries of western law and tradition. As Chesterton once wrote, "Before you tear down a wall, it's best to find out why it was erected in the first place." The three fired justices continue to manifest the arrogance which got them fired in the first place. Justice Wiggins should join them off the bench.